Crossley v English [No 2]
[2024] WASC 268 (S)
•17 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CROSSLEY -v- ENGLISH [No 2] [2024] WASC 268 (S)
CORAM: HILL J
HEARD: ON THE PAPERS
DELIVERED : 17 SEPTEMBER 2024
FILE NO/S: CIV 1457 of 2019
BETWEEN: WILLIAM EDMUND CROSSLEY
First Plaintiff
PATRICIA MARGARET CROSSLEY
Second Plaintiff
AND
PAUL CHRISTOPHER ENGLISH
Defendant
Catchwords:
Practice and procedure - Costs - Appropriate costs order following trial - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 66 r 1(1)
Supreme Court Act 1935 (WA) s 37
Result:
Plaintiffs pay the defendant’s costs of the action (including reserved costs) to be assessed if not agreed
Category: B
Representation:
Counsel:
| First Plaintiff | : | P A Kyle |
| Second Plaintiff | : | P A Kyle |
| Defendant | : | D M Stone |
Solicitors:
| First Plaintiff | : | Kyle & Company |
| Second Plaintiff | : | Kyle & Company |
| Defendant | : | Williams & Hughes |
Cases referred to in decision:
Clark, Tait & Co v Federal Commissioner of Taxation [1931] HCA 26; (1931) 47 CLR 142
Crossley v English (No 2) [2024] WASC 268
Donald Campbell & Co v Pollak [1927] AC 732
Frigger v Lean [2012] WASCA 66
Gray v Sirtex Medical Ltd formerly known as Paragon Medical Ltd [2009] WASC 126
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
HILL J:
On 26 July 2024, I delivered my reasons for decision following the trial of this matter.[1] On the same date, I made orders for the parties to file and serve any application for costs as well as submissions.
[1] Crossley v English (No 2) [2024] WASC 268.
The defendant seeks an order that the plaintiffs pay the defendant's costs of the action, including the reserved costs on 14 October 2019, 25 November 2019, 5 May 2020 and 12 October 2020, and this application for costs, to be assessed if not agreed.
The plaintiffs accept that, subject to two matters, this is the appropriate costs order. These two matters are:
(a)the costs associated with Mr Tadros, an expert briefed but ultimately not called by the defendant as a witness at trial; and
(b)the costs incurred as a result of the late production of documents subpoenaed by the defendant, which resulted in a brief adjournment of the trial.
The court has a wide discretion to award costs pursuant to s 37 of the Supreme Court Act 1935 (WA). While this discretion is broad, it is not unfettered and must be exercised judicially.[2]
[2] Frigger v Lean [2012] WASCA 66 [53] (Newnes JA, Murphy JA and Allanson J) citing Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] - [22], [134]; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 540, 558, 562, 568; Donald Campbell & Co v Pollak [1927] AC 732, 811.
The general rule is that costs should follow the event; that is, the successful party should recover their costs from the opposing party. The rationale for this general rule is that where a party has unjustifiably brought another party before the court, that party should be liable to compensate the other in costs.[3]
[3] Gray v Sirtex Medical Ltd formerly known as Paragon Medical Ltd [2009] WASC 126 [62] (Le Miere J).
It is incumbent on an unsuccessful party to satisfy the court that there are good reasons it should not pay the successful party's costs.[4]
[4] Rules of the Supreme Court1971 (WA) O 66 r 1(1).
For the reasons set out below, I do not consider that the defendant's costs of either of the matters referred to by the plaintiffs should be excluded from the costs order or that the plaintiffs are entitled to any costs in relation to these matters.
Costs of Mr Tadros
Mr Tadros was retained by the defendant as an expert witness. An expert report of Mr Tadros was served. In accordance with the orders of the court, Mr Tadros participated in an expert conclave with Mr Humphries, the plaintiffs' expert, and a joint expert report was filed and tendered at trial.
The plaintiffs say that they should not be required to pay the defendant's costs in relation to these matters and that the defendant should pay the plaintiffs' costs associated with each of these matters, together with the application for an adjournment of the trial filed 31 October 2022. The plaintiffs relied on four matters in support of this submission. First, at the conclave, Mr Tadros was unwilling to agree to facts not in issue between the parties. Second, the defendant did not call Mr Tadros as a witness at trial. Third, the report of Mr Tadros was 'substantially irrelevant' to the issues between the parties at trial. Fourth, the application to adjourn the trial was primarily to accommodate the availability of Mr Tadros.
The defendant says that none of these matters are sufficient to disentitle him to these costs. This is for two primary reasons. First, Mr Tadros' evidence was responsive to that of Mr Humphries, who was found by the court to not be an impartial or independent witness. In these circumstances, there was no requirement that the defendant call Mr Tadros. Second, while Mr Tadros was not called, his report was of assistance in narrowing the issues of dispute and in the court making findings.
The fact that a witness is not called by a party does not, of itself, mean that party is not entitled to recover their costs associated with that witness or that these costs are not reasonably and necessarily incurred.[5] Counsel is entitled to make decisions during the conduct of a case as to whether or not to call a witness.
[5] Clark, Tait & Co v Federal Commissioner of Taxation [1931] HCA 26; (1931) 47 CLR 142, 146 - 147 (Rich J).
In my view, the fact that Mr Tadros was not called as a witness at trial is not a basis on which the costs incurred by the defendant in his retention and preparation of his report should be excluded. The question as to the extent to which these costs were reasonable and necessarily incurred may be assessed during the assessment of costs (if required).
Regarding the conduct of the joint conclave, I am not in a position, in the absence of any evidence, to form a view in relation to this matter. This is because it is not clear from the plaintiffs' submission, what facts the plaintiffs say Mr Tadros failed to agree and what impact, if any, this had on the trial. It is clear from the joint expert report that there were significant areas of disagreement between the experts. However, I do not consider that this, by itself, disentitles the defendant from seeking to recover the costs associated with the joint conclave.
Finally, a costs order has already been made in respect of the application to adjourn the trial to accommodate Mr Tadros' availability, namely that costs be in the cause. In these circumstances, these costs should not be excluded.
Costs incurred by reason of the late production of documents
There is no dispute that there was a late production of documents by a third party in answer to a subpoena issued by the court at the request of the defendant.
At the commencement of the trial, counsel for the plaintiffs applied for an adjournment of the trial. This application was not successful. While a brief adjournment was granted, this was an indulgence of the court which was granted to enable counsel to review the subpoenaed documents.
In my view, the costs of the application for an adjournment form part of the costs of the trial. These costs should follow the event and form part of the defendant's costs that should be paid by the plaintiffs.
Conclusion
For these reasons, I consider that the costs order should be:
1.The plaintiffs pay the defendant's costs of the action, including reserved costs on 14 October 2019, 25 November 2019, 5 May 2020 and 12 October 2020, and the application for costs, to be assessed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to the Honourable Justice Hill
17 SEPTEMBER 2024
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